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Thursday, December 10, 2009

The ADA Interactive Dance Done Right

















Reprint Opelika Auburn News December 6, 2009
Alabama@ Work
By Tommy Eden, Attorney

Driving was an essential function of the job for an account sales manager for a Coca-Cola distributor in Utah. The only problem is that he suffered severe back pain and took several impairing effect prescription painkillers, including Lorcet, Oxycontin and Duagesic patches. A concerned co-worker reported that the account manager was overusing his pain medications.

Coca-Cola had a workplace drug-and-alcohol testing policy with safety language that prohibited employees from driving company cars while under the influence of impairing effect drugs or medications. Coca-Cola ordered the account manager to submit to a workplace drug test which came back negative for illegal drugs but positive for Hydrocodone, a synthetic opiate. Coca-Cola’s medical review officer (MRO) found a significant safety risk and said the account manager should not drive a company vehicle while taking narcotic pain medication. Coca-Cola placed the account manager on leave and told him he must refrain from using impairing effect pain medications before he could return to his account manager job.

The account manager attempted to get a doctor’s note saying he was cleared to drive safely while still taking the impairing effect medications. He never got the clearance letter. Coca-Cola stood firm with its position on the safety issue. However, it did offer him other jobs that did not involve driving. He rejected those offers and quit.

The account manager sued Coca-Cola claiming it failed to reasonably accommodate his disability and forcing him into a medicine-or-job decision violated the ADA. Coca-Cola countered that this was a safety issue, not discrimination and because the account manager could not perform the essential functions of the job, he did not have ADA protection. The Utah Federal District Judge ruled in favor of Coca-Cola, granting it summary judgment. The judge rejected the claims that Coca-Cola must give him his own driver or was required to create another special position for him “in order to provide a reasonable accommodation by reassignment.”

Common Sense Counsel: First, under the ADA for an Alabama employer to prevail it must document that it has engaged in the ADA interactive process - “do the dance.” Coca-Cola presented evidence that it engaged with the employee in an ongoing dialogue on four separate occasions attempting a resolution. Second, it had a written drug and alcohol testing policy with safety language about impairing effect medications which the court cited as a legitimate reason why the account manager could not drive company cars. Third, Coca-Cola had a well drafted job description. It would not have prevailed in this case unless it could show that driving safely was an essential job function. Now it is time to examine your policies, forms and practices to see if you can properly do the ADA 3 step.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com